Michelson v. Michelson

136 N.Y.S. 533, 3 N.Y. Civ. Proc. R., (N.S.) 5

Opinion

GIEGERICH, J.

Although the defendant has not appeared in opposition to the motion for alimony and counsel fee, I am compelled by reason of the insufficiency of the moving affidavit to deny the same. The action is for a divorce,- and the plaintiff alone has made an affidavit as to the defendant’s adultery. Her evidence, however, is not competent to prove the adultery. Moriarty v. Moriarty, 10 N. Y. Supp. 228; Wood v. Wood, 61 App. Div. 96, 70 N. Y. Supp. 72. The wife, in order to obtain either alimony or counsel fee, must present a case to the court showing that she has a fair prospect of success in the action. Collins v. Collins, 71 N. Y. 269, 275; Moriarty v. Moriarty, supra. Since this has not been shown, the motion must be denied, without costs, with leave to renew on sufficient papers.

Order signed.